Here's the latest from the U.S. Court of Appeals for the Federal Circuit (the court that hears appeals in most regulatory takings claims against the federal government), CCA Associaties v. United States, No. 2010-5100 -5101 (Nov. 21, 2011).
This is an appeal of a Court of Federal Claims decision holding that two federal statutes worked a taking under the three-part Penn Central test because they abrogated the rights of the owner of a Louisiana apartment building to prepay its way out of providing low income housing. The CFC held that the programs set up under the statutes in effect forced CCA to continue to provide low income housing -- a public good -- and that it was a taking.
The Federal Circuit reversed:
The United States appeals from the decision of the Court of Federal Claims that the Emergency Low Income Housing Preservation Act, Pub. L. No. 100-242, § 202, 101 Stat. 1877 (1988) (ELIHPA), and the Low-Income Housing Preservation and Resident Homeownership Act, Pub. L. No. 101-625, 104 Stat. 4249 (1990) (LIHPRHA) resulted in a temporary regulatory taking. CCA Associates (CCA) cross-appeals, asserting that ELIHPA and LIHPRHA resulted in a breach of the government’s contractual obligations. Because we are bound to apply the economic analysis outlined in Cienega X, we conclude that the Court of Federal Claims determination on the temporary taking must be reversed. Because the Court of Federal Claims correctly held that our Cienega IV precedent forecloses CCA’s breach of contract claim, we affirm the judgment against CCA on the breach of contract claim.
Slip op. at 2. Check it out if you are interested in how the federal courts are applying the Penn Central test (in the few instances they consider such issues). Be sure to read this article by Bill Wade for more background on the Penn Central test, Cienega X, and the issues in the case.
Here's our write up of the CFC decision and the oral arguments.
Will there be a cert petition? Maybe. Will the cert pool like it? We're not holding our breath.
CCA Associates v. United States, No. 10-5100-5101 (Nov 21, 2011)
